Ousmand v Minister for Immigration [2004] FMCA 735 (18 October 2004)

MIGRATION - Special need relative - brother-in-law not a special need relative - application to reinstate application dismissed for non-appearance - application has no chance of success.

Migration Regulations 1994, r.1.03

Federal Magistrates Court Rules 2001

Applicant:
AKMAL OUSMAND

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 404 of 2003

Delivered on:

18 October 2004

Delivered at:

Melbourne

Hearing Date:

18 October 2004

Judgment of:

Phipps FM

REPRESENTATION

Mr A. Ousmand appeared on his own behalf

Counsel for the Respondent:
Mr C.J. Horan

Solicitors for the Respondent:

Clayton Utz

ORDERS

(1) The application be dismissed.

(2) The applicant pay the respondent's costs fixed at $1,500.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE

MZ 404 of 2003

AKMAL OUSMAND

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application to set aside an order which I made on 8 April 2004 which dismissed an application to review a decision of the Migration Review Tribunal. The dismissal was made on the grounds of the applicant's non-appearance. The application had commenced in the High Court of Australia as an application for an order nisi. Hayne J on 7 February 2003 remitted the application to the Federal Court of Australia. On 23 April 2003, Marshall J of the Federal Court of Australia transferred the proceeding to the Federal Magistrates Court. It came before me on 8 April 2004 and was dismissed for non-appearance.

2. The applicant appears in person and has first of all asked for some more time to consider the proceedings, which I have treated as an application for adjournment. I have said that I will not adjourn the proceeding. The basis of the application for adjournment is a letter that the applicant produced from the respondent's solicitors subsequent to the application to set aside the order being filed. The application was filed on 12 August 2004 and the letter from the solicitors was in September 2004. It refers to a number of matters, including an appeal which the applicant had filed in the Federal Court, being an appeal from my order of 8 April 2004. It refers to the application I am now dealing with, the application to set aside the order of 8 April 2004. It mistakenly refers to that being an application in relation to a decision of the Refugee Review Tribunal. The applicant says that he thought this was an application relating to the Refugee Review Tribunal and not the Migration Review Tribunal.

3. The decision of the Migration Review Tribunal shows that the applicant had previously applied for a protection visa. He applied for a protection visa on 15 April 1995. That was determined and refused on 19 August 1996. The Migration Review Tribunal's decision does not say whether that application was dealt with in the Refugee Review Tribunal. The applicant can be in no doubt about what he was dealing with. The affidavit in support of his application says in paragraph 4: "On 13 April 1999 I applied to the Migration Review Tribunal".

4. Paragraph 5 says:

"On 17 September 1999, refused my application", and he sets out the rest of the history, including the application to the High Court which was made on 27 August 2002. I do not consider that there is any room for the applicant saying he has been disadvantaged because he received a letter from the solicitors for the Minister with an obvious typographical error and therefore I have refused the application for adjournment.

5. Two considerations apply in an application to set aside an order made for non-appearance. The applicant must given an explanation for not appearing and must show some prospects of success if the application is reinstated. On 8 April 2004, the applicant had sent to the court, by facsimile, a medical certificate dated 7 April 2004 signed by Dr Michael Yacoub which said that the applicant attended the My Doctor Coburg Medical Centre on 7 April 2004 because of a medical condition and then says:

I conclude by reason of this condition the patient's statement he/she is/was unable to attend work/school/the court -

6. Except for "the court" the words are pro forma printed. That did not satisfy me on the day that I should adjourn the application. The applicant has given oral evidence today in which he has elaborated and said that he had a cold and diarrhoea or a fever and diarrhoea. It is not necessary to make any decision about the applicant's explanation for not appearing on 8 April 2004. That is because he cannot satisfy the second ground or the second requirement, that is, to show some prospects of success in the application.

7. The background to the application is that the applicant is a citizen of Sri Lanka. On 25 October 1995, he entered Australia on a visitor's visa. Upon arrival he was granted a visa valid until 25 January 1996. He was granted a further visa on 14 November 1995, which was extended to 31 July 1997. On 15 April 1995, he applied for a protection visa. That was finally determined and refused on 19 August 1996.

8. On 30 July 1998, he lodged an application for a change in circumstance residence class AG visa on the grounds of being a special need relative of his brother-in-law, an Australian citizen who suffered from ischaemic heart disease and other associated problems. He claimed that he provided his brother-in-law with emotional and moral support. On 16 March 1999, that application was refused on the grounds that the applicant had not been nominated by a relative within the definition in regulation 1.03 of the Migration Regulations 1994. He then lodged an application to what was then called the Immigration Review Tribunal. That tribunal has ceased to exist. The tribunal which replaced it is the Migration Review Tribunal. It gave its decision on 17 September 1999 and the tribunal affirmed the decision to refuse the grant of the change in circumstance residence class AG visa.

9. The visa which the applicant sought was a subclass 806 visa. To satisfy the requirements, an Australian citizen had to be a special need relative. Special need relative is defined in regulation 1.03. There are a number of requirements, one of which is that the special need relative has to meet the definition of relative. Relative is also defined in regulation 1.03. It is not necessary to set out the regulation.

A brother-in-law does not come within the definition of relative and therefore a brother-in-law cannot come within the definition of special need relative.

10. The Migration Review Tribunal made that finding. It could not have made any other finding. As a matter of law, the applicant cannot satisfy the requirements and never could satisfy the requirements for the visa he sought because the person who nominated him was not a special need relative, never could be a special need relative. That means that the application to review the Migration Review Tribunal decision has no prospects of success. Therefore, this application to set aside the order made on 8 April 2004 cannot succeed. The applicant cannot show any prospects of success if the matter was to go to a hearing. The application is dismissed.

11. I will order that the applicant pay the respondent's costs fixed at $1,500.00. $1,500.00 has been sought by Mr Horan who appears on behalf of the respondent. It is less than the amount which would be fixed under schedule 1 of the Federal Magistrates Court Rules 2001 for a summary hearing as a discrete event, which is probably appropriate in these circumstances. Since less is sought, that is the amount which I will order. It is certainly a reasonable amount.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Phipps FM